That’s how the cupcake patent crumbles

Perhaps the surest sign that the decade-long cupcake fad is really and truly over is that even cupcake-related lawsuits are wrapping up tidily.

Most recently, news has come down of a settlement in a design patent infringement suit brought in March 2013 by Kimber Cakeware LLC of Hilliard, Ohio against Rancho Cucamonga, Calif.-based Bradshaw International Inc. Bradshaw is a major homewares manufacturer that markets its devices through a variety of brand names, including Betty Crocker, Dawn, Mr. Clean, Black & Decker and, in this case, Good Cook.

The timeline laid out in the original complaint is somewhat tortured, but as Kimber tells it, the events went down something like this:

In 2009, Robert S. Reiser, who would later serve as one of the principals of Kimber, pitched his batter separator invention – the “Batter Daddy” – to a variety of firms, including Bradshaw. Bradshaw declined the pitch, on grounds that the then-current financial crisis had led them to hold off on developing new products.

In May 2010, Reiser founded Kimber, which would begin marketing an adapted version of the device called “Batter Babies” in December 2010.

In April 2011, Reiser submitted an application for a patent on the ornamental design of his batter separator. The illustration in the design patent application looked like this:

In December 2011, Bradshaw allegedly ordered a packet of Batter Babies, which Kimber said were shipped to them with a label indicating they were “patent pending.”

In March 2012, Bradshaw introduced at the International Housewares Show its own product, dubbed the “Sweet Creations by Good Cook cupcake divider.” That product looks like this:

In November 2012, Reiser’s application was approved as design patent D671376.

There is, of course, one major problem, which should be pretty obvious at first glance. Even in the exhibit Kimber included in its complaint, the design of the Good Cook cupcake divider just simply does not look anything like the Kimber batter divider:

Bradshaw felt the case was so weak that not only did they seek summary judgment to dismiss, but they argued in a filing that Kimber should be slapped with Rule 11 sanctions for bringing a frivolous lawsuit without any merit whatsoever.

Bradshaw conceded that, like Kimber’s design, theirs is a batter separator designed to fit inside a standard muffin tin, allowing two different types of batter to be cooked simultaneously. But since the only grounds Kimber would have for infringement is that the design so closely resembled their own as to confuse an ordinary observer, Bradshaw accused Kimber of committing the cardinal sin of design patent suits:

Kimber has wrongly asserted protection for a functional, utilitarian article through its design patent, which is the epitome of what cannot be claimed in a design patent.